How fair is fair use? Understanding the nuances

Jyotsna Arora

Karandeep Singh

Arshia Katyal

Students of 4th Year B.A, LL.B (Hons.)
University School of Law and Legal Studies,
Guru Gobind Singh Indraprastha University, Delhi


“Each new Fair Use case increases our awareness and our knowledge”

–  J.J. Eysenck

Fair use is one of the exceptions to the exclusive right of Copyright, as it allows the use of the copyrighted material without the owner’s prior approval. However, this doctrine is applicable only in cases in which certain conditions are fulfilled. The essence of this doctrine is the sharing of information, and knowledge creation, thereby allowing the public to use the copyrighted works, thus limiting the owner’s monopoly. Having initially originated in the USA, this doctrine is now a part of multiple statutes across the world, and has also been incorporated into Article 13 of the TRIPS Agreement. In the Indian context, this defense is available under § 52 of Indian Copyright Act, 1957 which provides for certain acts which will not constitute infringement of copyright. The acts include fair dealing with a literary, dramatic, musical or artistic work for private use, criticism, educational and judicial proceedings, among others. While the provision appears straight-forward at first, the meaning and interpretation of what is ‘Fair Use’ depends on the facts of each case and thus can present many problems. Through this paper, the authors will trace the development of the doctrine over the course of years, and will determine what the term ‘Fair Use’ entails. Further, the authors aim to analyze the recent trends of the doctrine’s usage as a defence through various judicial pronouncements. Moreover, this paper will highlight the interpretation of the ‘Three Step Test’ as laid down in the Berne Convention and the TRIPS Agreement. Lastly, the authors will delve into any possible loopholes and suggest some changes in the law that would make the doctrine more comprehensive.

Keywords: Intellectual Property Rights, TRIPS Agreement, Berne Concention, Fair Use

Preferred Citation

Jyotsna Arora, Karandeep Singh & Arshia Katyal, How fair is fair use? Understanding the nuances, The Lex-Warrier: Online Law Journal (2018) 1, pp. 43 – 51, ISSN (O): 2319-8338

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